Standish v. Jackson Hole Mountain Resort

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH May 14, 2021
Christopher M. Wolpert
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
THOMAS A. STANDISH, IV;
MEGHAN KEITER,
Plaintiffs - Appellants,
v. No. 20-8045
JACKSON HOLE MOUNTAIN
RESORT CORPORATION,
Defendant - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WYOMING
(D.C. NO. 1:19-cv-00004-KHR)
Gary L. Shockey, Gary Shockey Law, Casper, Wyoming, for Appellants.
James K. Lubing (Nathan D. Rectanus with him on the brief), Lubing Law Group,
Jackson, Wyoming, for Appellee.
Before TYMKOVICH, KELLY, and PHILLIPS, Circuit Judges.
TYMKOVICH, Chief Judge.
While skiing in an ungroomed area at Jackson Hole Mountain Resort,
Thomas Standish was injured when his right ski struck a six-and-a-half-foot
stump covered with freshly fallen snow. Standish and his wife brought a
negligence lawsuit against Jackson Hole Mountain Resort (“Jackson Hole”) to
recover for his injuries.
Jackson Hole moved for summary judgment, contending the Wyoming
Recreation Safety Act (WRSA) limited Jackson Hole’s liability because
Standish’s injury was a result of an “inherent risk” of alpine skiing. The district
court granted summary judgment, finding that a tree stump covered by fresh snow
was an inherent risk of skiing for which the WRSA precludes liability. We agree
with that conclusion. Thus, exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
I. Background
In January 2017, California residents Thomas Standish and his then-
fiancée, Megan Keiter, traveled to Jackson Hole Mountain Resort as part of a
“bucket list” ski trip. From January 8 through 10—the three days prior to
Standish’s arrival—Jackson Hole had received about 27 inches of new snow, and
on the morning of January 11, Jackson Hole received an additional 18 inches of
snow. Over these four days, the mid-mountain depth of the snow increased from
56 to 80 inches. 1
1
Though the numbers do not add up precisely, this fact is undisputed. The
discrepancy may be due to the variance in measurements between lift-base depth
(continued...)
-2-
On January 11, the couple purchased ski passes for Jackson Hole. The
backs of these “J Cards” bear language indicating that the pass-holder
“acknowledges that participation in any and all winter recreation activities at
[Jackson Hole], including . . . skiing . . . involves SUBSTANTIAL AND
INHERENT RISKS, HAZARDS, AND DANGERS THAT MAY RESULT IN
SERIOUS INJURY, DEATH or damages to property.” Aplt. App. 41. The couple
first skied a few groomed runs. They then ventured down an off-piste run near
the Thunder Chairlift line, with Standish—the more experienced skier—leading
the way. “Off-piste” is a term for a ski run or area that is ungroomed and left in
its natural state. See Roberts v. Jackson Hole Mountain Resort Corp., 884 F.3d
967, 970 (10th Cir. 2018). About halfway down the mountain, Standish’s right
ski hit the top of a six-and-a-half-foot-tall tree stump that was covered with about
two inches 2 of fresh snow. His ski came off on impact, and he broke multiple
bones in his right leg.
Standish underwent surgery, receiving fourteen screws, two metal plates,
and a bone graft. After returning to California a few days later, Standish suffered
a pulmonary embolism, a common complication resulting from serious fractures.
1
(...continued)
and mid-mountain depth, as well as other environmental factors like wind.
2
The district court came to this number by subtracting the height of the tree
(78 inches) from the approximate depth of snow (80 inches). Neither party
contests this finding on appeal.
-3-
This required anti-coagulation injections in his abdomen for several months.
Because of Standish’s long recovery, he and Keiter pushed their wedding back
from June to September 2017. They also sold their business because Standish was
unable to work during his recovery.
In January of 2019, Standish and Keiter brought this diversity suit in the
District of Wyoming against Jackson Hole, alleging negligence and loss of
consortium, respectively. During discovery, the parties were unable to ascertain
when, why, or by whom the tree had been cut. In a deposition, Jackson Hole’s
risk safety and environmental manager agreed that the stump had been cut at some
point in the past, but no individuals or departments he talked to had any
recollection or knowledge of cutting that tree. When asked why it was cut in the
way it had been—that is, over six feet high––the manager suggested “it had been
cut down during the winter to mitigate a hazard, like the tree blowing over or
growing in a particular way that may have been identified to be a hazard.” Aple.
App. 63. In October 2019, the stump was cut down completely, apparently as a
result of the accident and the ongoing litigation.
Jackson Hole moved for summary judgment, which the district court
granted. The district court concluded that Wyoming law provided immunity from
the inherent risks of skiing, including unmarked objects on ungroomed
runs—even objects like trees that have been partially cut.
-4-
II. Analysis
Standish makes two arguments about why the district court erred in
granting summary judgment. First, he contends that the question of whether a
subsurface, cut tree in an off-piste area is an inherent risk of alpine skiing should
have been submitted to a jury. Second, Standish argues the district court
improperly considered inadmissible facts in granting summary judgment. We
address each in turn.
A. Inherent Risk
1. Standard of Review
We review a district court’s grant of summary judgment de novo. Roberts,
884 F.3d at 971. Summary judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “Only disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
Because this diversity suit arises out of Wyoming, we “must ascertain and
apply state law to reach the result the Wyoming Supreme Court would reach if
faced with the same question.” Cooperman v. David, 214 F.3d 1162, 1164 (10th
-5-
Cir. 2000). In doing so, “we rely foremost on decisions of the Wyoming Supreme
Court, and then on ‘other state court decisions, federal decisions, and the general
weight and trend of authority.’” Roberts, 884 F.3d at 972 (quoting Sapone v.
Grand Targhee, Inc., 308 F.3d 1096, 1100 (10th Cir. 2002)). We review the
district court’s determination of state law de novo. Cooperman, 214 F.3d at 1164.
2. The Wyoming Recreation Safety Act
Common-law tort principles typically guide our analysis of personal-injury
claims brought on the basis of negligence. When bringing a negligence claim, a
plaintiff must sufficiently assert that “(1) the defendant owed the plaintiff a duty
to conform to a specified standard of care; (2) the defendant breached the duty of
care; (3) the breach proximately caused injury to the plaintiff; and (4) the injury is
compensable by money damages.” Dimick v. Hopkinson, 422 P.3d 512, 521
(Wyo. 2018) (internal quotation marks omitted).
But in enacting the WRSA, the Wyoming legislature chose to insulate
recreational providers from some types of personal-injury claims. In relevant
part, the WRSA 3 provides that
3
On July 1, 2017, Wyoming’s Ski Safety Act went into effect. See Wyo.
Stat. Ann. § 1-1-123.2 (2020). This Act takes ski-area skiing out of the purview
of the WRSA. In other words, now the Ski Safety Act, rather than the WRSA,
sets out the statutory scheme for actions based on skiing at a ski area. But as the
district court found, the parties in this case agree the Ski Safety Act is inapplic-
able to this case because the accident occurred before the law became effective.
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[a]ny person who takes part in any sport or recreational
opportunity assumes the inherent risks in that sport or
recreational opportunity, whether those risks are known
or unknown, and is legally responsible for any and all
damage, injury or death to himself or other persons or
property that results from the inherent risks in that sport
or recreational opportunity.
Wyo. Stat. Ann. § 1-1-123(a). And a recreational provider “is not required to
eliminate, alter or control the inherent risks within the particular sport or
recreational opportunity.” Wyo. Stat. Ann. § 1-1-123(b).
a. Duty Under the WRSA
The WRSA limits the first negligence element: duty. Specifically, the
WRSA “codifies the common-law concept of primary assumption of the risk,”
which limits the recreational provider’s duty to a participant. Roberts, 884 F.3d
at 972; see also Halpern v. Wheeldon, 890 P.2d 562, 565 (Wyo. 1995) (“[T]he
assumption-of-risk terminology [in the WRSA] is intended to limit the duty which
a provider owes to a participant.”). “When primary assumption of the risk
applies, as it does under the WRSA, ‘the legal result is that the defendant is
simply relieved of the duty which would otherwise exist.’” Roberts, 884 F.3d at
972 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 68,
at 481 & n.10 (5th ed. 1984)). In other words, because the WRSA provides that a
participant has assumed certain risks that are inherent to the activity, the
recreational provider typically owes no duty for inherent risks of an activity. In
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sum, a recreational “provider has no duty to eliminate, alter, or control the
inherent risks of an activity, and any person who chooses to take part in a sport or
recreational opportunity assumes all inherent risks [that] are associated with that
opportunity.” Halpern, 890 P.2d at 565.
The district court generally decides whether the defendant owed a duty as a
matter of law, see Halpern, 890 P.2d at 565, but the jury typically decides
whether a particular risk is an inherent one, see Beckwith v. Weber, 277 P.3d 713,
722 (Wyo. 2012). In the context of whether a hazard is an inherent risk, the
“level of factual specificity required . . . will often but not always preclude
summary judgment on the duty question.” Creel v. L & L, Inc., 287 P.3d 729, 737
(Wyo. 2012). So “when genuine issues of material fact exist, it is proper to
present the issue to the jury of whether a risk is inherent to a particular activity.”
Halpern, 890 P.2d at 566. But in the absence of genuine issues of material fact,
“the district court may decide as a matter of law that the provider does not owe a
duty to the participant.” Roberts, 884 F.3d at 973 (quoting Halpern, 890 P.2d at
566); see also Jackson Hole Mountain Resort Corp. v. Rohrman, 150 P.3d 167,
168 (Wyo. 2006) (“If the court can say that, given that evidence, this is an
‘inherent risk’ and reasonable minds cannot differ about that, then summary
judgment is appropriate.”).
-8-
b. Inherent Risk
The central question here is whether the plaintiff’s injury was the result of
an inherent risk of a particular activity. If the injury was caused by an inherent
risk, then the recreational provider owes no duty to “eliminate, alter, or control
it[,]” and the entry of summary judgment is appropriate. Rohrman, 150 P.3d at
168.
The WRSA defines “inherent risk” as “those dangers or conditions which
are characteristic of, intrinsic to, or an integral part of any sport or recreational
opportunity.” Wyo. Stat. Ann. § 1-1-122; see also Cooperman, 214 F.3d at 1166
(discussing definitions of “characteristic,” “intrinsic,” and “integral”). But the
WRSA—unlike some other states’ recreational liability statutes—does not list
examples of inherent risks. Rather, “[w]hat an ‘inherent risk’ means in any given
set of circumstances is a variable that the Wyoming Legislature included in the
statute by design.” Muller v. Jackson Hole Mountain Resort, 139 P.3d 1162, 1166
(Wyo. 2006), opinion after certified question answered sub nom. Muller v.
Jackson Hole Mountain Resort Corp., 210 F. App’x 792 (10th Cir. 2006).
In order to determine what is an inherent risk under the WRSA, the
Wyoming Supreme Court has explained a “reasonableness” inquiry should guide
courts. Rohrman, 150 P.3d at 170. So, the “central concern . . . is what
‘reasonable persons’ will view as inherent risks.” Id. “[I]f reasonable minds
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cannot differ as to whether or not a given set of factual circumstances involve an
‘inherent risk’ of skiing (in this particular instance we are concerned with skiing,
or fill in the blank as the case might be), then the protections of the [W]RSA
apply, and the litigation of that controversy must come to an end.” Id.
The Wyoming Supreme Court has pointed to several sources of guidance
for determining what reasonable persons would view as inherent risks of an
activity. One is, of course, jury deliberations on the particular facts of a case.
See Rohrman, 150 P.3d at 170. Others are safety experts and experienced skiers. 4
Id. But the sources most discussed by the Court in this context are analogous
statutes from similarly-situated states. See Rohrman, 150 P.3d at 170–72; Muller,
139 P.3d at 1166–67. In Rohrman, the Court held that reference to analogous
statutes—for example, from Colorado, New Mexico, and Utah—is “a meaningful
source of guidance in explaining the inherent risks of skiing to any fact finder.”
Rohrman, 150 P.3d at 172.
The explicit citation to these statutes, and the reference to other similar
state statutes, is meant to be an expansive guide for courts considering the
inherent risk question. For one, the texts of all three analogous state statutes
4
Though the WRSA is not limited to skiing, many of the precedential cases
in this context are results of skiing accidents. Any reference in this opinion to
skiing, as opposed to other recreational activities, is merely a reflection of this
body of precedent and the particular facts of this case.
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included in Rohrman have non-exhaustive lists of inherent risks of skiing. Each
of the three has broad language that includes, for example, trees and forest debris,
subsurface conditions, and man-made structures. See Colo. Rev. Stat. § 33-44-
103(3.5) (2021); N.M. Stat. § 24-15-10 (2021); Utah Code Ann. § 78B-4-402
(2021). For another, the court expressly did not constrain itself to these lists,
stating “those statutes are not the exclusive source of guidance and the factual
variations are, in some senses, infinite.” Rohrman, 150 P.3d at 172. 5
5
Though Wyoming’s recent Ski Safety Act is not applicable to this case,
see note 3, the Wyoming legislature, in passing the Act, has since provided a
definition of “inherent risks” of skiing in a ski area. In doing so, Wyoming’s law
now more closely resembles these analogous state statutes. The Ski Safety Act
provides that
“Inherent risk” with regard to skiing in a ski area means
those dangers or conditions which are part of the sport of
skiing, including:
(A) Changing weather conditions;
(B) Falling or surface snow conditions, whether natural
or man-made, as they exist or change;
(C) Surface or subsurface conditions including bare
spots, forest growth, rocks, stumps, streambeds, cliffs,
extreme terrain, trees or other natural objects;
(D) Collisions or impacts with natural objects such as
the objects specified in subparagraph (C) of this
paragraph including encounters with wildlife;
(E) Impact with ski lift towers, signs, posts, fences or
enclosures, hydrants, water pipes or other man-made
structures and their components . . . ;
(F) Variations in steepness or terrain, whether natural
or as a result of ski trail or feature design, or
snowmaking or grooming operations such as roads,
freestyle terrain, jumps and catwalks or other terrain
(continued...)
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In particular, the court’s reference to analogous statutes is significant at the
summary judgment stage. In situations with novel or contested facts, of course,
the question of reasonableness—that is, whether reasonable minds cannot differ
over what is an inherent risk—is appropriate for consideration by the fact-finder,
not for determination as a matter of law by the court. But when there are no
genuine disputes of material fact, the Wyoming Supreme Court has explicitly held
that “[u]nder Wyoming’s statutory construct, which is much broader than that of
Colorado, such items as those included in Colorado’s statute may, as a matter of
law, be inherent risks of the recreational activity of skiing.” Muller, 139 P.3d at
1167 (emphasis added). “[I]n such cases[,] a trial court may grant a motion to
dismiss or a motion for summary judgment based on the [W]RSA.” Id. In other
words, a court may look to the enumerated inherent risks in Colorado’s statute to
hold that a particular risk is an inherent one as a matter of law.
3. The Risk to Standish
The district court determined that skiing into an unmarked six-and-a-half-
foot-tall tree on an off-piste run—which had been previously altered by Jackson
Hole and which was submerged and made invisible by recent, heavy snow
5
(...continued)
modifications; and
(G) Collisions with other skiers.
Wyo. Stat. Ann. § 1-1-123.2 (2020) (emphasis added).
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fall—was an inherent risk of skiing. We agree with both the framing of the
inherent risk and the district court’s conclusion.
With regard to the risk’s framing, we have previously acknowledged “we
can not look at the risk in a vacuum.” Cooperman, 214 F.3d at 1167. Rather,
“we must evaluate the risk at the greatest level of specificity permitted by the
factual record.” Id. Here, the operative facts are undisputed. The mountain had
received 45 inches of fresh snow in the four days prior to the accident. The
accident took place in an off-piste—and therefore ungroomed—area. Standish’s
injury was caused by a collision with the top of the stump, which was lightly
covered with the fresh snow and thus not visible to Standish. The stump had been
cut to a height of six-and-a-half feet at some point in the past to mitigate some
problem. The district court’s inherent-risk framing did not employ any disputed
facts and accurately captures the facts of the case. Neither party appears to
contest this framing on appeal. We therefore adopt this framing of the risk.
With this specific factual scenario in mind, we conclude that encountering a
snow-covered stump in an ungroomed area is an inherent risk of alpine skiing.
Everyone familiar with the sight of the intertwining runs of a ski area knows that
cutting and otherwise managing trees is necessary for the runs’ creation and
upkeep. The vast majority of ski-able terrain simply could not exist in the first
instance without the ministrations of sawyers and forest managers. And the
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forested setting of ski areas means that trees may sometimes fall or otherwise
present hazards. As the risk safety and environmental manager for Jackson Hole
indicated in his deposition, trees can be altered or “removed for various reasons.”
Aple. App. 63. These can include creating more space for skiing in a particular
run or glade or mitigating a hazard, such as a “tree blowing over or growing in a
particular way that may have been identified to be a hazard.” Aple. App. 63. The
height at which the tree in this case was cut could have been a function of a high
snow-level during winter, or it could have resulted from a decision to cut just
below a particular hazard in any season (i.e., the tree broke or became unstable
above that height). Whatever the reason, the ability to act to mitigate hazards and
cut trees that pose a risk to skiers—or to create new runs or vary the terrain—is
essential to effectively managing a ski area.
Moreover, this accident occurred in an off-piste area, in which unmarked
obstacles are frequent and inevitable. “[W]e cannot ignore the nature of the run
on which he encountered [the stump] and the inherent risks that run presents.”
Roberts, 884 F.3d at 976 (discussing an accident in an off-piste area). And a
changing level of the snow—which here was, by chance, just enough to render the
stump invisible—is another inherent risk of skiing. Variable snow conditions are
intrinsic to the mountainous setting of ski resorts in the American West. See,
e.g., Kopeikin v. Moonlight Basin Mgmt., LLC, 981 F. Supp. 2d 936, 945
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(D. Mont. 2013) (“Skiing presents a multitude of dangers and hazards.
Notwithstanding an operator’s efforts to tame it, skiing takes place on essentially
wild terrain, on a mighty mountain, with fluctuation in weather and snow
conditions that constantly change.” (internal quotation marks omitted)).
Consequently, all reasonable people understand that the combination of
encountering the remnant stumps of forest-management practices and of changing
snow levels at a ski area is an inherent risk of alpine skiing.
Furthermore, the Wyoming Supreme Court has explicitly held that because
the WRSA is a broader statutory scheme than Colorado’s analogous law, “such
items as those included in Colorado’s statute may, as a matter of law, be inherent
risks of the recreational activity of skiing.” Muller, 139 P.3d at 1167 (emphasis
added). Colorado’s statute expressly includes stumps—whether snow-covered or
not—as inherent risks. See Colo. Rev. Stat. § 33-44-103(3.5) (“‘Inherent dangers
and risks of skiing’ means those dangers or conditions that are part of the sport of
skiing, including . . . surface or subsurface conditions such as bare spots, forest
growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other
natural objects, and collisions with such natural objects . . . .”). 6 And other states
6
While the other items in this list are all generally natural, the plain
meaning of stump indicates a tree that has been cut. See, e.g., Stump, Merriam-
Webster, https://www.merriam-webster.com/dictionary/stump (defining “stump”
as “the part of a plant and especially a tree remaining attached to the root after the
(continued...)
-15-
include subsurface stumps or forest debris as inherent risks in their analogous
statutes, including Utah, see Utah Code Ann. § 78B-4-402 (stumps); New Mexico,
see N.M. Stat. § 24-15-10 (“trees or other forms of forest growth or debris”);
Idaho, see Idaho Code § 6-1106 (2021) (same); and Montana, see Mont. Code
Ann. § 23-2-702 (2021) (stumps). 7
Similarly, Colorado’s statute—as well as, for example, Utah’s, Idaho’s, and
Montana’s—also includes changing snow conditions and levels as inherent risks.
See Colo. Rev. Stat. § 33-44-103; Mont. Code Ann. § 23-2-702; Utah Code
§ 78B-4-402; Idaho Code § 6-1106; see also Fleury v. IntraWest Winter Park
Operations Corp., 372 P.3d 349, 351 (Colo. 2016) (holding an in-bounds
avalanche qualifies as an inherent risk of skiing because it is a “changing
condition” of snow). The depth of the snow in this case is as integral to the
accident as the height of the stump. Any less snow, and the stump would have
6
(...continued)
trunk is cut”); Stump, Oxford English Dictionary, https://www.oed.com/view/
Entry/192144 (defining “stump” as “[t]he portion of the trunk of a felled tree that
remains fixed in the ground; also, a standing tree-trunk from which the upper part
and the branches have been cut or broken off”). And the remainder of Colorado’s
inherent-risks list includes man-made items, including “impact with lift towers,
signs, posts, fences or enclosures, hydrants, water pipes, or other man-made
structures and their components,” and “terrain modifications.” Colo. Rev. Stat.
§ 33-44-103(3.5).
7
So, too, does Wyoming’s new Ski Safety Act, which went into effect
about six months after Standish’s accident. See Wyo. Stat. Ann. § 1-1-123.2
(including “stumps” as inherent risks of skiing).
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been visible; any more, and Standish would have passed over the top unharmed.
Given that there are no genuine disputes of material facts in this case, holding
that a snow-covered stump in an off-piste area is an inherent risk of alpine skiing
comports with Wyoming Supreme Court precedent.
This conclusion aligns with both our precedent and public policy. In
Cooperman, a Tenth Circuit panel considered whether a slipping saddle that was
loosely cinched by the recreational provider is an inherent risk of horseback
riding. See Cooperman, 214 F.3d at 1168. Cinching a saddle, explained the
panel, “is done by hand, and not with scientific precision,” so “a provider must
make a judgment call as to how tight or loose to cinch the saddle.” Id. “This
imprecision in the cinching of the saddle is characteristic or typical of and
therefore inherent in the sport of horseback riding.” Id. (internal quotation marks
omitted). The same is true for managing forests. Ski-area managers must make
judgment calls about whether and how to cut a tree that has become a hazard. In
winter, the height at which a tree is cut is as imprecise and judgment-based as
cinching a saddle: it can be cut too tall or too short, and the risk of its being
covered lightly with the next snow fall—or being exposed by snow melt—is
characteristic of ever-changing mountain conditions at ski areas. So, too, in the
summer: a tree could be cut at any height to mitigate a hazard, and a forest
manager could decide to leave the stump remnant for a variety of reasons (e.g.,
-17-
impossibility of removal based on terrain, concerns about slope destabilization or
damage, or ecological concerns about surrounding flora or fauna). Forest
management, just as the saddle-cinching in Cooperman, is based on best
practices—not exact practices—and the resulting risks are inherent to skiing in a
forested ski area.
In a more recent case, this court held that encountering subsurface
boulders—and the gaps between them—in an off-piste ski area in changing snow
conditions is an inherent risk of skiing. See Roberts, 884 F.3d at 976. The panel
in Roberts noted that a “critical distinction has emerged in the case law between a
provider’s failure to control inherent risks (which is no longer actionable)[] and
actions that affirmatively enhance existing risks (which remain actionable).” Id.
at 975. Because subsurface boulders are an inherent risk of skiing in an off-piste
area, and because Jackson Hole had done nothing to affirmatively enhance the
existing risk of the boulders, the panel reasoned, the WRSA limited Jackson
Hole’s liability, and summary judgment was appropriate. See id. at 977.
To reach this conclusion, the Roberts panel relied on Creel and Dunbar.
See id. at 975–76. The outcomes in both Creel and Dunbar rest on the actions of
the employees or agents of the recreational provider affirmatively enhancing
existing risks. In Creel, the Wyoming Supreme Court held that the danger of
being struck with a golf ball is an inherent risk of attending a golf
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tournament—but the employee who encouraged the golfer to hit despite the
golfer’s concern about spectators in the way affirmatively enhanced the existing
risk of stray golf balls. See Creel, 287 P.3d at 739. In Dunbar, the Tenth Circuit
panel concluded encountering a half-pipe in a terrain park is an inherent risk of
skiing—but the “delphic statements” of the employee on how to safely exit the
terrain park affirmatively enhanced the existing risks posed by the terrain park
features. Dunbar v. Jackson Hole Mountain Resort Corp., 392 F.3d 1145, 1153
(10th Cir. 2004).
Not so here. Had a Jackson Hole employee represented to Standish that
this particular run was groomed or free of obstacles, Jackson Hole might have
created a jury question that the resort somehow enhanced the risk of an accident.
See, e.g., Roberts, 884 F.3d at 976 (The plaintiff “was not directed to [the area
where the accident occurred] by an employee offering ‘delphic statements’ about
its safety; in fact advanced skiers in search of fresh untracked and unconsolidated
powder are attracted to off-piste terrain . . . because it is ungroomed, untamed,
and provided the types of natural obstacles that distinguish such runs from those
frequented by less talented skiers.” (quoting Dunbar, 392 F.3d at 1153; emphasis
in original)).
But there are no facts in this case to suggest anything of the sort. “[T]here
is a difference between the consequences of conduct chosen by [the skier], and
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risks that are inherent to that choice.” Dunbar, 392 F.3d at 1151. Standish knew
that unmarked obstacles could and would exist in this off-piste area, and he chose
to proceed down this more-advanced run. Nor did Standish present any evidence
that cutting the tree at this particular height affirmatively enhanced the risk or
took it “outside the realm of inherent risk.” Creel, 287 P.3d at 737. What made
the stump’s height hazardous was the snow level on January 11—and changing
snow levels are undoubtedly an inherent risk of mountain recreation.
Consequently, the district court properly found that Jackson Hole did not enhance
the already-existing risk of the stump.
The outcome in Roberts further supports our decision here. In that case,
Roberts’s expert—who had concluded that subsurface boulders were not an
inherent risk of off-piste skiing—“put the cart before the horse” by faulting
Jackson Hole for not placing warning signs above the area. Roberts, 884 F.3d at
976–77. But this targeted the element of breach without establishing the
existence of a duty in the first place. Id. at 977. Conclusory statements that the
boulders that had caused Roberts’s injuries were not inherent risks of skiing were
insufficient to preclude summary judgment. Id.
The same is true of the expert testimony Standish presents. As the district
court noted, Standish’s expert addressed how Jackson Hole breached the duty it
supposedly owed Standish by not removing the remnant stump. But a snow-
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covered stump is itself an inherent risk of alpine skiing, and the expert’s
testimony does not address what action by Jackson Hole takes the stump “outside
the realm of inherent risk.” Creel, 287 P.3d at 737. The expert’s claim that
“[t]he act of removing the top part of the tree was an affirmative act by the Resort
which created the risk encountered by Mr. Standish” is unavailing. Aplt. App. 33.
If that were true, then every tree cut by Jackson Hole’s forest managers would
present a non-inherent risk to skiing—depending on the snow level on a particular
day. And the expert’s claim that Jackson Hole’s “failure to finish the job . . .
substantially enhanced the risk created by the Resort” improperly imposes a duty
on Jackson Hole to remove completely the stumps made by its forest management.
Neither the Wyoming legislature nor any court has imposed such a duty on ski
areas. And given the Wyoming Supreme Court’s express embrace of the inherent
risks in Colorado’s statute, including stumps, the expert testimony fails to
preclude summary judgment. 8
8
Standish’s argument that the expert represented the views of at least “one
reasonable person” and thus precluded summary judgment, is similarly unavailing.
The reasonableness inquiry to determine whether something is an inherent risk of
an activity requires, of course, consideration of the inherent risk itself. But,
again, Standish’s expert does not discuss or espouse any non-conclusory opinion
on the inherent risk of a subsurface stump in an off-piste area; rather, his
conclusion is based on Jackson Hole’s failure to remove it. This merely assumes
that such a stump is not an inherent risk. Further, the mere existence of a
contrary expert opinion—particularly a conclusory expert opinion—does not
preclude summary judgment. See Roberts, 884 F.3d at 977.
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This conclusion also aligns with public policy. To hold that Jackson Hole
has a duty to cut trees to a particular level or to remove stumps entirely would
disincentivize recreational managers from attempting to mitigate hazards for their
guests. If a fallen tree in an off-piste area is an inherent hazard of skiing, and
cutting it off below the break creates a non-inherent risk, a ski area manager
might decide to simply leave the fallen tree so as not to potentially incur liability.
The WRSA is meant to limit the liability of recreational providers so that they
can, in their judgment, both manage and offer sometimes-risky recreational
opportunities.
Moreover, the standard that would arise from the opposite conclusion here
would be untenable. Suppose a tree falls in an off-piste ski area during the winter
and needs to be cut. The tree is cut to just above the current snow level, 70
inches. For the next week, the snow melts, leaving about 10 inches of the stump
exposed and clearly visible to skiers. But then 11 inches of fresh snow falls, just
covering the exposed stump. To conclude that the ski area is then liable for a
skier’s collision with that stump would expose the ski area to liability the WRSA
is clearly meant to limit. In other words, to hold that the WRSA does not
preclude liability in this case would impose a duty on ski areas to never allow a
tree stump be the same height as the current level of the snow—even in off-piste
areas. We decline to reach such a conclusion.
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* * *
Standish’s accident was the result of an unfortunate confluence of a stump,
an ungroomed run, and the spectacular snow levels of the previous days. The
combination of these factors is an inherent risk of skiing, a sport as thrilling as it
can be risky. And the WRSA reflects this by limiting the duty owed by an entity
offering access to such a sport. Accordingly, we affirm the district court’s grant
of summary judgment in favor of Jackson Hole on the basis of the WRSA.
B. Consideration of Inadmissible Facts
Standish also argues that, in evaluating the motion for summary judgment,
the district court improperly considered facts that would be inadmissible before a
jury. His argument is based on the district court’s discussion of the factual
context of analogous and precedential cases—including, for example, Creel,
Dunbar, Cooperman, and Roberts. See Aplt. Br. at 12–14.
While we review a district court’s evidentiary rulings for abuse of
discretion, see, e.g., Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264,
1268 (10th Cir. 1998), we review a district court’s findings of law and entry of
summary judgment de novo. See Roberts, 884 F.3d at 971. It is true that a
district court may consider only admissible evidence from a record in ruling on a
motion for summary judgment. See Johnson v. Weld Cty., Colo., 594 F.3d 1202,
1209 (10th Cir. 2010) (“[I]t is well settled in this circuit that we can consider only
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admissible evidence in reviewing an order granting summary judgment.” (quoting
Wright-Simmons, 155 F.3d at 1268)).
But in discussing these cases, the district court here was not making an
evidentiary ruling about whether the facts of cases like Creel and Cooperman
would be presented to a jury at trial. Rather, it was making a determination of
law. In discussing the facts of these analogous cases, the district court was
engaging in classic legal analysis: comparing the facts of Standish’s case with the
factual context of other inherent-risk cases under the WRSA. See, e.g., Aplt.
App. 54 (discussing the facts of Roberts to evaluate Standish’s claims); Aplt.
App. 58 (discussing Dunbar to determine Standish’s claim of risk-creation).
To have erred here, the district court would have had to consider facts
about Standish’s case that were not in the record or would have been otherwise
inadmissible before a jury. The district court did not do so, and we reject
Standish’s argument.
III. Conclusion
Thomas Standish’s injuries from his accident were severe and painful. This
case provides a somber reminder of skiing’s risks to those who enjoy the sport.
But Wyoming law does not provide recourse against Jackson Hole for Standish’s
accident. We therefore AFFIRM the district court’s entry of summary judgment.
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